Evening star. [volume] (Washington, D.C.) 1854-1972, 1887-06-06

The question Of the legality of the appointment
OF the Interstate Commissioners has again been
ralSed ana 1t Is tntimated that the railroad cor
poratlons VIII endeavor to bring that question be-
1ore the United States Supreme Court. Even be-
lore the adjournment OF the last Congress the
power OF the President to appoint the Commis-
sloners during the ensuing recess was called into
question: IL was maintained that as the Commfs-
sion was created by the then-existing Congress
the nominations should be made in time for the
Senate then in session. to give its advice and con-
sent thereto; that as the offices were new they
would not come under the head Of vacancies hap
penlng during q recess OF the Senate, and
therefore the President would nave no
legal right to make the appointments
after the adjournment of the senate.
STAR reporter was Informed to-day by a
member Of the Cabinet that this whole question
Was exhaustiyeiy considered when it was first
raised and that the President and all his advisers
unanimously concurred that there was no doubt as
10 his legal right to appoint the Interstate Com
mlSSl0nerS during the recess.
WHAT THE RECORDS SHOW.
AT the Department OF Justice The STAR reporter
was permitted to examine the records to see what
opinions had been rendered as to the power Of the
opinion rendered by Attorney General Devens, on
the 18th OF June 1880, covered the field very
thoroughly. The commission OF collector fulton,
OF PMiadeiph1a, expired on the 31St OF May $780,
the Senate then being in session. The President
appointed Gen. John F. Hartranft, but the senate
adjourned without taking action upon the nomna-
tOn The President appointed Gen. Hartranft
a1ter the adjournment OF the Senate, and Attorney
General Devens was asked as to the Presidents
listed during the recent session OF the Senate.
OPINION OF ATTORNEY-GENEKAL DEvENs.
In his opinion, General Devens stated that his
torca examination OF the action OF the executives
showed that the uniform construction had been
that the words Of the Constitution "may happen
n hn los aSx.x{x
alenI 10 may happen to exist during the recess, y
ana tnat the Presidents, therefore entitled to fill
noC on1y vacancies which have occurred subse-
QuenCly 10 the adjournment of the Senate but also
such vacancies as existed during its session which
II tailed or refused to act upon After careful ex-
animation l am satisfied that not only has the
practice OF Presidents been uniform in this regard
put that 1t has been sustained whenever brought
into controversy by the advice OF the respective
attOrneyS-general."
EARLIER DECISIONS.
Gen. Devens reviewed the decisions Of his prede-
cessors, and he found that Attorney General
Writ, on october %, 1923 decided that the Presi-
dent mad power to fill all vacancies existing dur
ing recess by temporary appointment. to end
with the next ensuing session or the Senate.
In 1882 AttOrney-General Taney, in the noted
case OF Samuel Gw1nn, to be register of lands in
Mississippi, the Senate having by resolution, de-
held that the President had full legal power to fli
the vacancy during recess Mr.. Taney held fur
that the Offices created by law and which are
necessary to the current operations OF the Gov
ernment should always be full, and that
when vacancies happened they should not
be protracted beyond the time necessary
for the President to I'LL them. He defned the
powers vested in the President, and those vested
In the Senate, and said that as it was foreseen
tnat vacancies would occur during recess the
power OF temporary appointment was given to the
President to avoid the one evil OF permitting the
0nlce TO remain vacant, or the other evil Of con-
venfng the senate in order to fill it. But he
added, the SenateS power OF approval was pro.
tected by making the recess appointment only
temporary one.
In 1s41 Attorney General Legare held that the
President had the power to fill all vacancies,
regardless whether they existed prior to the ad
J0urnment OF the Senate or not He said that
pure legal science or as a matter Of public eX-
pedlency, 1t could not admit OF Doubt
In 1S41 AttOrney-General Mason affirmed the
opinions or his predecessors and In 1855 Attorney.
General cushing adaed the weight OF his opinion
70 the same side. He said his predecessors had
thoroughly demonstrated and conclusively estab-
uShed as doctrine OF administrative law that the
expression In the Constitution ''al vacancies that
may happen during the recess sgnifed "all va
cancleS that may happen to exist during the re-
cess" and he added, ''They concur In the general
statement that hOwSOever vacancy happens to
exist II it exists it may be filled by the tempo
rary appointment Of the President"
In 1862, Attorney General Bates; in 1866, Attor-
nery-General Stanbery; in 1858, Attorney-G
eral EvartS, and in 1875 Announcement WILL
1amS, In written opinions, fully concurred,
ana the interpretations and decisions OF their pre-
deceSSOrs, and AttOrney-General DevenS, after
citing all these, in the Fulton-tiartranrt case con-
cluded with the declaration that the Presidents
power 10 I'LL all vacancies, no matter how occur
ring, during recess OF the Senate, was settled
beyond doubt; and that is the view OF the present
Administration. They do not believe there is any
legal question as to the appointment OF the Inter-
state commissioners.